DECIDED: AUGUST 1, 2003
Summary judgment. Fulton Superior Court. Before Judge Longer.
Troutman Sanders, William M. Droze, David M. Green, for appellants.
Thurbert E. Baker, Attorney General, Sidney R. Barrett, Jr., Isaac Byrd, Senior Assistant Attorneys General, Samantha M. Rein, Assistant Attorney General, for appellee.
United States Of America payday advances Advance Centers, American advance loan, Inc., EZ Credit, Inc., Fast money `Til Payday, Inc., Great American advance loan, Inc., Great American Credit, Inc., Monday `Til Payday, Inc., United States Of America wage advance, Inc., United States Of America payday advances Advance Center #8, Inc., United States Of America payday advances Advance Center #9, Inc., United States Of America cash advance Center #10, Inc., United States Of America cash advance Center #11, Inc., United States Of America cash advance Center #12, Inc., United States Of America cash advance Center #13, Inc., and United States Of America cash advance Center #14, Inc. Brought a judgment that is declaratory against John W. Oxedine, indiv motion for summary judgment had been given because of the test court for Oxendine. Finding no mistake, we affirm.
In July of 2002, the Commissioner authorized an study of the “payday loan” tasks of USA Payday Advance Centers. As a consequence of the assessment, an administrative “show cause” order released, as well as the plaintiffs had been one of the events known as when you look at the purchase. Following the hearing on October 11, 2002, the Commissioner unearthed that the plaintiffs had been in breach regarding the Industrial Loan Act for making loans lacking any commercial loan permit plus in making false and misleading advertisments of loans; the Commissioner commanded them to stop and desist from making loans “except as permitted beneath the Georgia Industrial Loan Act. ” Plaintiffs had been billing an interest that is annual of 650%. On October 22, 2002, the court that is superior plaintiffs’ selling point of your order. On December 2, 2002, plaintiffs dismissed that appeal.
On December 3, 2003, plaintiffs filed this declaratory judgment action and alleged which they no more made the loans but that, as “companies” for County Bank, the loans had been now produced by County Bank through them. November 13, 2002, had been the date that is effective such home based business procedure to begin with. Plaintiffs stated an exemption through the Georgia Industrial Loan behave as agents when it comes to out-of-state bank. https://signaturetitleloans.com But, such provider agreement, which was alleged into the verified pleadings, had been never placed into proof.
During the time that the declaratory judgment action ended up being brought, the Commissioner hadn’t determined whether or perhaps not to open a study into plaintiffs’ start up business arrangement with County Bank, considering that the Commissioner had no details about the newest arrangement and loans and had taken no place in regards to the new procedure.
The Commissioner relocated for summary judgment in the grounds that no “actual or justiciable debate” existed pertaining to plaintiffs’ brand brand brand new arrangement with County Bank and that there was indeed no ruling desired on plaintiffs’ brand brand new arrangement because of the Commissioner pursuant to their laws allowing demands for declaratory rulings. Consequently, plaintiffs neglected to exhaust its administrative treatments just before seeking judicial action.
Under OCGA § 7-3-1 et seq., the Georgia Industrial Loan Act, loans under $3,000 or less come inside the ambit of this Act. “a quick payday loan is that loan of quick timeframe, typically a couple of weeks, at an astronomical yearly interest rate. ” Smith v. Steinkamp, 318 F. 3d 775, 776-777 (7th Cir. 2003). Payday advances are the existing form of “salary buying” or “wage buying. ” See Gunnels v. Atlanta Bar Assoc., 191 Ga. 366, 381(3) ( 12 S.E. 2d 602) (1940); Hinton v. Mack Publishing Co., 41 Ga. App. 823, 826 ( 155 INTERNET SEARCH ENGINE 78) (1930). The charges, costs, and interest on a quick payday loan are between 15% and 30% associated with the principal for a two-week loan, constituting a pretext for usury. Cashback Catalog deals, Inc. V. Cost, 102 F. Supp. 2d 1375, 1380 (S.D. Ga. 2000); see also Greenberg v. Commonwealth, 255 Va. 594 ( 499 S.E. 2d 266) (1998); White v. Check always Holders, Inc., 996 S.W. 2d 496 (Ky. 1999). Because the Georgia Industrial Loan Act was enacted to “define and avoid usury” and also to supply a way to obtain regulated funds “for individuals who have been borrowing at usurious prices from loan sharks, street shylocks and wagebuyers, ” then such financial transactions come in the jurisdiction associated with the Act. Therefore, the Industrial Loan Commissioner has jurisdiction over “wage-buyers. ” OCGA § 7-37-1 et seq.; 1954-56 Op. Att’y Gen. At pp. 385-386. If the maximum rate of interest has ended the limitation set by OCGA § 7-3-14 of 10per cent or even the lender does not hold a commercial permit given by the Commissioner, then “payday loans” violate the Georgia Industrial Loan Act. See 2002, Op. Att’y Gen. No. 2002-3.
Freeman v. Decatur Loan Finance Corp., 140 Ga. App. 682, 685 ( 231 S.E. 2d 409) (1976).
Some payday lenders have contracted with federally chartered banks or state chartered banks insured by the FDIC to take advantage of federal banking laws that allow such banks to make loans across state lines without regard to that state’s interest and usury laws in “rent-a-charter” or “rent-a-bank” contracts in an attempt to circumvent state usury laws. See State of Colorado ex rel. Salazar v. ACE money Express, Inc., 188 F. Supp. 2d 1282, 1285-1286 (D. Colo. 2002); very very Long v. ACE money Exp., 2001 U.S. Dist. Lexis 24617 (M.D. Fla. 2001); Goleta Nat’l Bank v. Lingerfelt, 211 F. Supp. 2d 711 (E.D.N.C. 2002). Whether it has took place this instance and if it is legitimate or a subterfuge that is mere to circumvent Georgia usury rules can’t be reached in this situation, since the plaintiffs neglected to exhaust administrative treatments also to place the contract with County Bank into proof.
The judicial branch lacks jurisdiction to deal with an executive branch function until there has been an exhaustion of administrative remedies, i.e., the executive branch has no further remedy under the separation of powers under the Georgia Constitution. The precise legislative empowerment for judicial summary of executive action is strictly followed. Perkins v. Dep. Of medical attention, 252 Ga. App. 35, 36-38(1) ( 555 S.E. 2d 500) (2001). The explanation is “resort to your process that is administrative let the agency to put on its expertise, protect the agency’s autonomy, enable a more efficient quality, and bring about the consistent application of issues inside the agency’s jurisdiction. ” Cerulean Co., Inc. V. Tiller, 271 Ga. 65, 67(1) ( 516 S.E. 2d 522) (1999). A plaintiff “is forbidden from doing by indirection that which it really is prohibited from doing straight, i.e., bypassing the fatigue of administrative appeals. ” (Citations omitted. ) Perkins v. Dept. Of medical attention, supra at 38.
Long-standing Georgia legislation calls for that a celebration aggrieved by circumstances agency’s decision must raise all dilemmas before that agency and exhaust available administrative treatments before searching for any judicial post on the agency’s choice. Provided that there clearly was a highly effective and available administrative treatment, a party is needed to pursue that treatment before looking for equitable relief in superior court.
Cerulean Co., Inc. V. Tiller, supra at p. 66. Subsequently,
An action for declaratory judgment will never be amused where in actuality the rights associated with events have previously accrued plus the plaintiff faces no chance of taking future undirected action. The place where a statute provides a celebration with an easy method of review by an administrative agency, such procedure is normally a sufficient treatment at legislation to be able to preclude the grant of equitable relief.